Labor & Employment Law Daily Wrap Up, NLRB NEWS—Advice memo analyzes CBA harassment language under Section 7 standards, (Apr 3, 2026)

By Patricia K. Ruiz, J.D.

The Division of Advice found employees would not reasonably construe the workplace harassment provision to restrict protected activity.

The National Labor Relations Board (NLRB) Division of Advice has concluded that a workplace-harassment provision contained in a collective-bargaining agreement between the Center for Economic and Policy Research and its employees’ union does not violate the National Labor Relations Act (NLRA). The NLRB region submitted the request for guidance on whether the provision is unlawful under the Board’s 2023 decision in Stericycle Inc., 372 NLRB No. 113. The Division of Advice recommended that the allegation be dismissed, absent withdrawal of the charge.

Workplace harassment provision. The employer, the Center for Economic and Policy Research, is a Washington, D.C.-based think tank. Its employees have been represented for more than 20 years by the International Federation of Professional and Technical Engineers, Nonprofit Professional Employees Union (Local 70), AFL-CIO. The challenged language appeared in the 2021—2023 agreement’s Article V, Section 5, titled “Workplace Harassment.” The provision states that it applies to all employees, interns, fellows, and others with whom employees have workplace contact. It defines harassment to include “bullying, intimidation, direct insults, malicious gossip, and victimization,” and provides a nonexhaustive list of examples.

Those examples include sabotaging another person’s work, minimizing someone’s contributions, degrading someone for making suggestions, preventing a co-author from sharing outreach tasks after a release, engaging in frequent or unwanted advances, making derogatory comments about a person’s origin or religious beliefs, angrily confronting someone in the workplace in person or online, gaslighting, habitual lying about others’ conduct, calling meetings to publicly humiliate someone, and ridiculing or singling out individuals to perform unwanted tasks unrelated to their jobs.

The provision further states that management and union leadership will investigate reports of harassment. It specifies that sexual harassment results in termination, while other harassment is subject to progressive discipline depending on severity, including counseling, reprimands, suspensions, or termination. According to the memorandum, there was no allegation that the policy had been applied to activity protected under Section 7 of the Act.

Stericycle not applicable. In addressing the applicable legal framework, the Division of Advice noted that it was unaware of Board decisions applying Stericycle or prior handbook-rule standards to provisions contained in a collective-bargaining agreement. The memorandum instead discussed Supreme Court and Board precedent concerning the waiver of employees’ individual Section 7 rights through collective bargaining, focusing on NLRB v. Magnavox Co., 415 U.S. 322 (1974), and subsequent cases.

The memorandum summarized Magnavox as holding that a union may not waive employees’ individual Section 7 rights where those rights implicate employees’ freedom to support or oppose a bargaining representative, while recognizing that other economic rights, such as the right to strike, may be waived. It also referenced Board decisions applying that principle to other contexts, including communications about contract terms.

No restraint to Section 7 activity. Applying those principles, the Division of Advice concluded that employees would not reasonably construe the workplace-harassment provision at issue to restrain Section 7 activity, including activity involving the right to oppose or support the union. The memorandum stated that, viewed in context, the provision addresses misconduct unrelated to the exercise of protected concerted activity. The memorandum distinguished cases in which the Board found contract provisions unlawful because they restricted employees’ rights to express views regarding union representation or collective bargaining, noting that the provision here did not contain similar restrictions.

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